Half a year after a set of scandals beset the police department in Berkeley, threatening to derail the appointment of interim chief Jen Louis as the new permanent police chief, city leaders moved recently to put the episode behind them. The bottom line: the participants in the Bike Team texting scandal are on the job, including the sergeant who was suspended for many months.
Last November a whistleblower, former police officer Corey Shedoudy, exposed a stream of racist and anti-homeless texts among members of the downtown Bike Team. The texts revealed illegal conduct, including an arrest quota focused on homeless people on the downtown streets. (California state law specifically outlaws arrest quotas.1)
In a dramatic city council meeting on November 15, 2022, at which City Manager Dee Williams-Ridley had asked the body to approve her pick for police chief, the nominee’s suitability for leadership was hit with multiple additional allegations. The city manager opted to temporarily withdraw the nomination of Chief Louis pending an external investigation of the texting scandal. For more background, see our previous article on this subject (“Scandal-Ridden Police Bike Unit Still Patrolling” in Berkeley Speaks issue #2, March 2023, https://berkeleyspeaks.org/scandal-ridden-police-bike-unit-still-patrolling/
The Bike Team texts contain hate speech against homeless people in the downtown area, and evidence of a monthly quota of 100 arrests by the team.
> “Stern [a Bike Team officer] is gonna come back with a new strain that wipes out the homeless pop. We will just ride by the bodies!”
> “Hows Operation 100 going”
> “81 arrests! We can do 19 [more] by Friday for sure!”
> “I was just at Kevin Reece’s [a BPD commander] birthday party and Dave [another commander] was there and we briefly talked about DTF [Downtown Task Force]. He said just kick ass, arrest people, have fun, and get me results and I will never jam you about overtime.”
> “Im gonna come with a bike force board game. You do s*** around the city to move forward. Famous people arrested you get extra points.”See here for the full list of released texts. There is much more demonstrating racial prejudice, abuse of overtime, special favors, drinking on the job, and upper management complicity
Exoneration of the Police Chief
The investigation of the Bike Team texting scandal continued for eight months, and a parallel policy review by the Police Accountability Board is still underway. In a surprise move in May 2023, with both studies still ongoing, the city manager requested city council immediately promote the interim police chief to permanent status, with a raise in her base pay to over $300,000. The city manager’s promise to hold the promotion pending the results of the investigation was forgotten. Despite protests from several council members, the majority voted 7-0 to go along with the city manager’s request, with Council Members Harrison and Bartlett abstaining.
The city manager stated at the May 9 meeting that she believed the interim chief knew nothing about the texting scandal until Officer Shedoudy blew the whistle in November 2022. Even though the investigation was not yet complete, the manager felt comfortable declaring that Chief Louis bore no responsibility for the scandal and was therefore fit for command. Then again, the city manager made the same statement in November, before the investigation was even launched.
Two months later, on July 20, 2023, the independent investigator, law firm Swanson & McNamara, reported that the investigation was concluded. The report explained the process of the investigation, but nothing about its conclusions. The investigators were able to authenticate nearly all of the alleged text messages. A full report was provided to the city administration, but the City will not release the investigator’s report.
The leader of the Bike Team, Sergeant Darren Kacalek, who was also president of the police officers association, was returned to duty as a patrol leader.
Here’s where the tale gets a little twisty.
City Government Reaction to the Investigation
Also on July 20, the City of Berkeley public information officer, Mr. Matthai Chakko, who works for the city manager, announced that the Swanson & McNamara report found that the Berkeley Police Department (BPD) “does not have a practice of racial bias,” nor does it have any arrest quotas. These statements bluntly contradict the verified text messages of the Bike Team. (The PIO’s statement was later retracted by city management.)
The combination of the secret outcome of the independent investigation, teased and then withdrawn, and the promotion of the interim chief coming like a bolt out of the blue, left many police accountability advocates feeling like both the outcome of the investigation and of Chief Louis’ elevation were preordained.
Council member Kate Harrison, a key author of the police accountability amendment to the city charter, responded publicly with the following statement:
In addition to the disturbing release of confidential information, these statements draw a conclusion that extends far beyond the scope of the investigation into the bike patrol during a narrow period of October 1, 2019 through November 22, 2020. The public information officer indicated that the one-page summary of the investigatory process (but not conclusions) were all that could be released publicly, but then drew these sweeping conclusions.
It is a breach of protocol and undemocratic to keep the investigation confidential while simultaneously releasing drips of information without context to absolve the department and management. This behavior breeds further mistrust about government and the independent nature of the investigation.
Nathan Mizell, former vice-chair of the Police Accountability Board and current Rent Board commissioner, stated, “All of this undermines the actual mission of promoting public trust that the (city) charter entrusts to the Police Accountability Board.”
For his part, Mayor Jesse Arreguin stated that since the investigation verified the accuracy of the text messages, “this kind of behavior cannot be tolerated.” He underlined the importance of recommendations from the PAB to help improve BPD policies. “This episode further demonstrates the need to implement reforms – such as an improved Early Intervention System – to identify specific behavior or patterns to address problems immediately and provide ongoing accountability.”
Will the Police Accountability Board Unearth the Truth?
Fortunately, the Police Accountability Board is also looking into the Downtown Bike Team scandal. The PAB, in coordination with the Director of Police Accountability (DPA), is conducting a “policy review.” While not investigating the personal culpability of individual officers, the PAB can look into whether BPD policies have been broken by departmental structures, if policies need to be strengthened, if the department’s culture is deficient, and possibly whether the behavior depicted in the texts reached beyond the Bike Team.
This policy review has been conducted almost entirely outside of the public eye. What little has been revealed indicates that the PAB has had a difficult time getting cooperation from the BPD, particularly in getting access to records they need for the policy review. In April 2023, Director of Police Accountability Hansel Aguilar alerted the mayor and council along with top City staff of several requests for records that the BPD had not fulfilled, describing some BPD responses as in noncompliance with Charter provisions, and some in partial compliance. Police accountability advocates were surprised at the level of non-cooperation, since Section 125(20)(a) of the city charter, in Director Aguilar’s words, “unambiguously” requires City staff to produce upon PAB and DPA request the following, without redaction or limitation:
1) Records relevant to Police Department policies, practices, or procedures;
(2) Personnel and disciplinary records of sworn employees of the Police Department; and
(3) Police Department investigative records.
The City Attorney’s Office went even further in limiting the transparency of the city government. The office classifed as “Confidential” even their legal opinion that justifies the City’s non-cooperation with the PAB. This level of secrecy makes it virtually impossible for community members to contest the apparent violation of the city charter.
At press time, Berkeley Speaks learned that the pace of the PAB’s policy review is picking up. The BPD has turned over additional records that the PAB has sought, and the “PAB Subcommittee on Policies & Practices Relating to the BPD Downtown Task Force and Bike Unit Allegation” is hard at work on a draft final report. If the report comes from the subcommittee to the full Board in mid-autumn, it could be approved by the Board to send to city council before the end of 2023. The PAB report is expected to be available to the public.
What is Blocking Civilian Oversight of the Police?
The Police Accountability Board was established on July 1, 2021. Its focus for over a year was to develop regulations to govern how the investigation and review of civilian complaints against police officers are handled. The Board sent its unanimous proposal on the regulations to the city council on November 21, 2022. The language of the proposed regulations is drawn verbatim from the city charter amendment, 2020’s Measure ii, which the voters passed by an 85% margin.
Under state law, any change to employment conditions and employer-employee relations must be presented to the employee association for negotiation, what’s called a meet-and-confer process. There are limits to the City’s responsibility to meet and confer; for example, it is not required if the change “arises from implementation of a fundamental managerial or policy decision.”
In addition, those with long memories will recall that the entire text of Measure ii was negotiated for over a year in a previous meet-and-confer process starting in 2018, meaning that much of the proposed permanent regulations had already been negotiated with the police association, before the Measure went to the voters.
It’s also noteworthy that while meet-and-confer is a negotiation, there is no requirement that the parties keep conferring until they agree. Under state law, after a good-faith attempt to come to agreement, the City may declare an impasse. The police association may not use the meet and confer process to indefinitely stall the legitimate policy decisions of the government, for example meaningful police accountability.
As of press time, the PAB has been waiting nearly a year for the City’s review of the permanent regulations to complete. Two years after the start-up of the Board, and nearly three years since the overwhelming citizen vote for police accountability, key powers of the oversight board cannot be exercised because of the long delays getting its permanent regulations approved.
In short, the biggest obstacle to civilian oversight of the police in Berkeley at this time is the City’s delay of the permanent regulations intended to express the will of the voters who overwhelmingly approved the charter amendment in 2020. For police accountability to finally come to Berkeley, the City Attorney’s Office and city management will have to unblock the process.
September 2023: Another BPD Scandal
Now there is word of another incident, this one involving racist and violent misconduct by a BPD sergeant. Sgt. David Marble is the subject of a lawsuit for excessive force against an African American man, who was not suspected of any crime, while Sgt. Marble was off-duty and apparently drunk. In this case, as well as another reported by Berkeley community members, complainants reported the sergeant used racially derogatory language against Black men.
The lawsuit against the City of Berkeley refers to Marble’s conduct near his home in Antioch. It alleges that his anger was focused simply on the presence of the civilian in the neighborhood. It claims Marble told the civilian, “you all do not belong here, n—–s do not belong here.” Community concern was heightened due to the timing of the lawsuit, which came shortly after the City’s Public Information Officer, Mr. Chakko, stated that the police department has no pattern of racial bias. But an attorney representing the complainant stated that when Marble belatedly identified himself as a police officer, pointed his BPD-issued revolver and pointed it at the civilian, and shouted “I am the law,” his conduct became the responsibility of the City of Berkeley.
Attorney John Burris also told the press that the incident was a classic case of racial profiling, in which a white officer decides a Black man does not belong in a certain neighborhood, and uses racial slurs, his fists, and a gun to enforce his position.
Mayor Arreguin told a September 12 city council meeting that “No city employee should speak that way or engage in that way,” while Council Member Kate Harrison called the lawsuit’s allegations “direct acts of aggression towards residents and others using power and race as a cudgel…what we have to do is take action.” Council Member Ben Bartlett linked the cases of Sgt. Kacalek and Sgt. Marble, saying “this is the second BPD sergeant implicated in anti-black racism this year. This is important because it implies that state violence could be directed at innocent people. I’m troubled and worried about what this says about the department’s culture.” Council Member Terry Taplin said, “We must be steadfast and vigilant against all forms of misconduct in the fulfillment of the city’s mission. “
The Contra Costa District Attorney refused to pursue a case against Sgt. Marble, who remains on active patrol duty in Berkeley.
1 California Vehicle Code Section 41602. “No state or local agency employing peace officers or parking
enforcement employees engaged in the enforcement of this code or any local ordinance adopted pursuant to this code, may establish any policy requiring any peace officer or parking enforcement employees to meet an arrest quota.” http://shq.lasdnews.net/pages/pagedetail.aspx?id=982